Sr. v. State Of Ind.
| Decision Date | 21 October 2010 |
| Docket Number | No. 02A05-0910-CR-562.,02A05-0910-CR-562. |
| Citation | 931 N.E.2d 378 |
| Parties | Cornelius Tyrone LACEY, Sr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
COPYRIGHT MATERIAL OMITTED.
Harold W. Myers, Wyss, Morgan & Myers, P. Stephen Miller, Fort Wayne, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
In this interlocutory appeal, Cornelius Tyrone Lacey, Sr. (“Lacey”) challenges the denial of his motion to suppress evidence obtained during the execution of a search warrant. We reverse.
Lacey presents two issues for review:
I. Whether evidence should be suppressed because the search warrant was not supported by probable cause; and
II. Whether evidence should be suppressed because the search warrant was executed as a “no-knock” warrant in violation of his rights under the Indiana Constitution.
During 2008, Fort Wayne Police began receiving tips that Lacey was selling marijuana and cocaine. They conducted surveillance of a business owned by Lacey and also conducted a trash pull at Lacey's residence on Pointe Center Cove in Fort Wayne. The trash included mail addressed to Damion Wilkins (“Wilkins”). Investigating officers obtained a search warrant for execution at Lacey's residence and compiled information for the Fort Wayne Emergency Services Team regarding the criminal histories of both Lacey and Wilkins.
On December 5, 2008, the Fort Wayne Police Emergency Services Team arrived at the Pointe Center Cove residence to execute a search warrant directed toward evidence of illegal drugs and weapons. “A number of people,” including Lacey and Wilkins, were present inside the residence. (Tr. 20.) Team leader Thomas Strausborger, having been advised of the criminal histories of Lacey and Wilkins, decided to execute the search warrant in a “no-knock” fashion for officer safety. The door was breached by means of a ramming device, and the officers announced their presence only as they “were gaining entry.” (Tr. 14.)
Subsequent to the execution of the search warrant, Lacey was charged with Unlawful Possession of a Firearm by a Serious Violent Felon, Indiana Code Section 35-47-4-5, Possession of Marijuana, Indiana Code Section 35-48-4-11, and Maintaining a Common Nuisance, Indiana Code Section 35-48-4-13(b). On May 26, 2009, Lacey moved to suppress evidence obtained in the execution of the search warrant, claiming that the warrant was not supported by probable cause and that the “no-knock” execution led to a seizure that violated his rights under the United States and Indiana Constitutions and Indiana Code Section 35-33-5-7.
After conducting a hearing, the trial court denied the motion. Lacey sought permission to file an interlocutory appeal. We accepted jurisdiction and this appeal ensued.
The standard of appellate review of a trial court's denial of a motion to suppress is similar to other sufficiency issues. Litchfield v. State, 824 N.E.2d 356, 358 (Ind.2005). We determine whether substantial evidence of probative value exists to support the trial court's ruling. Id. We do not reweigh the evidence and we consider conflicting evidence most favorably to the trial court's decision. Id. We will affirm the trial court's ruling if it is sustainable on any legal grounds that are apparent in the record. Richardson v. State, 848 N.E.2d 1097, 1101 (Ind.Ct.App.2006), trans. denied.
Lacey argues that the warrant for the search of his residence was not supported by probable cause, in violation of the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Article 1, Section 11 of the Indiana Constitution tracks the language of the Fourth Amendment almost verbatim. 1
Probable cause is a fluid concept having no precise definition. Bowles v. State, 820 N.E.2d 739, 747 (Ind.Ct.App.2005), trans. denied. It must be decided on a fact by fact basis. Id. In deciding whether to issue a search warrant, “ ‘[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” Jackson v. State, 908 N.E.2d 1140, 1142 (Ind.2009) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). The reviewing court, which includes both the trial court ruling on a motion to suppress and an appellate court reviewing that decision, is to determine whether the magistrate had a “substantial basis” for concluding that probable cause existed. Id. We focus upon whether reasonable inferences drawn from the totality of the evidence support the determination of probable cause. Id. We review the trial court's “substantial basis” determination de novo, while nonetheless affording significant deference to the magistrate's determination. Id.
Here, the following information was set forth in the affidavit that was presented to the issuing judge. On May 20, 2008, Fort Wayne Police received an anonymous tip that marijuana was being sold by the pound from a business located at 5214 Decatur Road in Fort Wayne. On October 30, 2008, an individual arrested for possession of cocaine identified Lacey as the seller of the cocaine, and further advised that he had made numerous purchases of cocaine from Lacey at the Decatur Road location. Lacey's ownership of the business located at 5214 Decatur Road was established through Fort Wayne Police records of prior alarm calls at that address. Surveillance of the business premises revealed multiple brief stops by individuals. After Fort Wayne Police confirmed Lacey's home address, a trash pull was conducted at that residence. The trash search yielded tobacco mixed with a substance field tested as marijuana. 2
Based on this information, there was a fair probability that contraband or evidence of a crime would be found at Lacey's residence. Accordingly, there was probable cause for the issuance of the search warrant.
II. No-Knock Warrant
Lacey argues that there was insufficient justification for the officers' decision to dispense with the “knock and announce” rule and thus the seizure violated his rights under Article 1, Section 11 of the Indiana Constitution. 3 He further argues that the appropriate remedy for the violation is exclusion of the evidence.
In Beer v. State, 885 N.E.2d 33 (Ind.Ct.App.2008), we considered the claim that this statutory provision requires police officers to knock and announce their presence and authority in all instances. We initially noted that Indiana Code Section 35-33-5-7 “does not expressly prohibit entry without announcing the law enforcement officer's authority and purpose when there are exigent circumstances or when it would be dangerous to officers or others to make such an announcement.” Id. at 42. We further observed:
Ind.Code § 35-33-5-7 is not inconsistent with the knock and announce requirements set forth in case law from both the United States Supreme Court and our state courts. Indiana courts have held that it is well settled that the knock and announce requirement under the United States Constitution and the Indiana Constitution need not be adhered to blindly regardless of the particular circumstances confronting the authorities at the time the search is to be conducted. See Davenport v. State, 464 N.E.2d 1302, 1305 (Ind.1984).
Beer, 885 N.E.2d at 43. Ultimately, we concluded that “Indiana law supports no knock warrants under certain circumstances.” Id.
Under the Fourth Amendment, officers need only a reasonable suspicion that entry without knocking and announcing would be dangerous, futile, or inhibit effective investigation. Richards, 520 U.S. at 394, 117 S.Ct. 1416. In some cases, the Indiana Constitution confers greater protections to individual rights than does the Fourth Amendment. Holder v. State, 847 N.E.2d 930, 940 (Ind.2006). Although the search and seizure provision found in Article 1, § 11 of the Indiana Constitution tracks the language of the Fourth Amendment, our jurisprudence has focused on whether the actions of the government were “reasonable” under “the totality of the circumstances.” Shotts v. State, 925 N.E.2d 719, 726 (Ind.2010). “The Indiana Constitution has unique vitality, even where its words parallel federal language.” State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind.2002) (citing Ajabu v. State, 693 N.E.2d 921, 929 (Ind.1998)).
“As we consider reasonableness based upon the particular facts of each case, the Court also gives Art. 1, § 11 a liberal construction to angle in favor of protection for individuals from unreasonable intrusions on privacy.” Holder, 847 N.E.2d at 940 (citing Gerschoffer, 763 N.E.2d at 965). It is because of citizen concerns regarding safety, security, and protection that some intrusions upon privacy are tolerated, “so long as they are reasonably aimed toward those concerns.” Id.
The relevant factors in assessing reasonableness of a seizure turn on a balance of “ ‘1) the degree of concern, suspicion, or knowledge that a violation had occurred, 2) the degree of intrusion the method of the search or seizure imposes on the citizen's ordinary activities, and 3) the extent of law enforcement needs.’ ” Id. (quoting Litchfield, 824 N.E.2d at 361). The burden...
To continue reading
Request your trial
-
Lacey v. State
...their way into his residence without first knocking and announcing their presence. The Court of Appeals reversed. Lacey v. State, 931 N.E.2d 378 (Ind.Ct.App.2010). We granted transfer and hold that the Indiana Constitution does not require prior judicial authorization for the execution of a......
-
U.S. v. Scott
...the Court will not issue a ruling on it. 5. Relying upon Wilkins v. State, 930 N.E.2d 652 (Ind. Ct. App. 2010), and Lacey v. State, 931 N.E.2d 378 (Ind. Ct. App. 2010), the Defendant argues that, if his case were heard in an Indiana state court, his knock-and-announce argument would likely ......
-
State Of Del. v. Upshur
...remedy for a violation of that rule. 98.Vargas, 910 P.2d at 953. 99. 5 1 4 U.S. 927 (1995). 100. 870 P.2d 103 (N.M. 1999). 101. 931 N.E. 2d 378 (Ind. App. 2010). 102. 940 N.E. 2d 828. The Indiana Rules of Appellate Procedure provide for a discretionary "transfer" to the Indiana Supreme Cour......